Florida felons renew challenge to voting law at 11th Circuit

ATLANTA (CN) — In a new effort to challenge a Florida law requiring felons to pay fines, fees and restitution before they can regain their right to vote, an attorney for two Sunshine State felons told an 11th Circuit panel Thursday that the law violates the 19th Amendment by placing an undue burden on low-income Black women.

A ruling last year by the Atlanta-based appeals court blocked most inroads to challenging the law, known as Senate Bill 7066.

But attorneys for two Black women with felony records argued Thursday that a Florida federal judge applied the wrong legal standard in ruling against them on their claim that the payment requirement discriminates against women in violation of the 14th Amendment’s equal protection clause and the 19th Amendment, which granted women the right to vote and provides that a citizen’s right to vote cannot be denied based on sex.

Attorney Nancy Abudu of the Southern Poverty Law Center argued Thursday that the plaintiffs, Rosemary McCoy and Sheila Singleton, are statistically unlikely to be able to satisfy their financial obligations under the law.

“Black women in the criminal justice system in Florida are at the bottom,” Abudu said. “The magnitude here is our clients will effectively never be able to vote again.”

McCoy and Singleton claim that low-income women of color face unemployment, low wages, and difficulty paying off their debts at much higher rates than their male and white female counterparts.

According to the Southern Poverty Law Center, 43.6% of formerly incarcerated Black women are unemployed compared to 35.2% of formerly incarcerated Black men and 23.2% of formerly incarcerated white women.

“Appellants’ lawsuit requires the state of Florida to acknowledge the compounding impact of race, class, and gender in a law like Senate Bill 7066 that ties the payment of legal financial obligations to the right to vote, but artificially disentangles the continuing burdens low-income women of color face in satisfying those financial obligations,” a brief filed by the plaintiffs states.

Florida’s Republican Legislature passed SB 7066 just months after voters approved a constitutional amendment to automatically restore convicted felon’s voting rights upon completion of their sentences. The law requires convicted felons to pay all fines and legal fees associated with their conviction before they can vote again.

U.S. District Judge Robert Hinkle, a Bill Clinton appointee, ruled against the law after an eight-day trial in May 2020, finding that it was an unconstitutional “pay-to-vote system.” McCoy and Singleton’s case had been consolidated into the ruling.

Although Hinkle’s ruling blocked major portions of SB 7066, he found that the pay-to-vote requirement had a disparate impact on men rather than women because men are incarcerated at higher rates.

Hinkle wrote that there was no direct or circumstantial evidence of gender bias in the law and “no reason to believe gender had anything to do with the adoption of Amendment 4, the enactment of SB 7066, or the state’s implementation of this system.”

The en banc 11^th Circuit reversed the decision in September, finding that requiring felons to pay all of their financial obligations before voting is not a violation of their due process rights.

Abudu argued Thursday that Hinkle should have applied a legal standard analyzing the “undue burden” of the law instead of a standard looking at whether there was discriminatory intent behind it.

But a decision in the case is likely to come down to the panel’s weighing of prior caselaw.

“I think that there are a fair number of cases in this circuit that indicate that when you’re dealing with an equal protection claim that goes to voting, you don’t have to prove discriminatory intent," said U.S. Circuit Judge Adalberto Jordan, a Barack Obama appointee. "On the other hand, there are cases in the 11^th Circuit involving felon re-enfranchisement challenges where we’ve said, and the Supreme Court has said, that you do need to prove discriminatory intent."

“I just think you’re running up against a wall of precedent that we, as an intermediate appellate court, can’t penetrate,” Jordan added.

Arguing on behalf of Florida Governor Ron DeSantis and Secretary of State Laurel Lee, attorney Mohammad Jazil of Holtzman Vogel urged the panel to show deference to Hinkle’s findings.

Jazil told the panel it is unclear what baseline the plaintiffs are using to show that the treatment of Black women under the law is worse than that of other groups.

In rebuttal, Abudu explained that the comparison for Black women is “every other group.”

“In terms of Hinkle’s findings, we submit that those findings are the only confusing thing in the record,” Abudu said.

McCoy and Singleton have asked the panel to remand the case so the district court can apply a different legal standard to their equal protection claims.

Jordan was joined on the panel by fellow Obama appointee U.S. Circuit Judge Jill Pryor and Senior U.S. Circuit Judge Gerald Tjoflat, a Gerald Ford appointee.

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